B O O K
E XC E RP T
D
Environmentalism
in the
Balance
Under the pressure of ecological problems
of unprecedented difficulty, the movement
is working out a new future for itself, an
endeavor that is still much contested. The
Supreme Court is positioned as an arbiter
of that future, both legally and culturally
By Jonathan Z. Cannon
42 | T H E E N V I R O N M E N T A L F O R U M
uring the oral argument in Department of Transportation v. Public Citizen in 2004, Justice Stephen Breyer,
brushing back a correction by the
counsel for the environmental respondents, quipped, “You’re against
bad environment. All right. We’re all
against that.” But, if we’re all against a bad environment, why has the Supreme Court rejected environmentalist positions in many of its decisions, limiting
protections and distancing itself from the values and
beliefs that have animated the movement?
From my cultural analysis of environmental
cases, the story may be discouraging for environmentalists. In a number of the cases I examine, the
Court rejected or questioned the urgent priority for
environmental concerns that was the movement’s
motivating force. As an example, although it reached
a proenvironment result in TVA v. Hill, the snail
darter case, the Court insinuated its view that saving
an obscure species of “little fish” at the expense of a
virtually completed dam was not sensible.
In diverse legal settings, the Court also restricted
operation of the ecological model, the core of the
environmentalist cosmology. In Solid Waste Agency of
Northern Cook County v. Army Corps of Engineers and
Rapanos v. United States, it truncated aquatic ecosystems under the Clean Water Act to facilitate public and
private development. Lucas v. South Carolina Coastal
Council and Koontz v. St. Johns River Water Management District discounted claims of ecological harm in
privileging the rights of private owner­-developers. Lujan v. Defenders of Wildlife (Lujan II) denounced theories of ecosystemic injury as a basis for judicial access.
In these cases, ecological interdependence was disputed
in fact or made legally irrelevant.
The Court systematically marginalized the nation’s environmental stewardship law, the National
Environmental Policy Act. Rather than applying
NEPA to constrain agency actions with significant
adverse impacts on the environment, the Court
minimized the act’s effect. It foreclosed substantive
review of agency actions, emphasized agency discretion in implementing the law’s procedural requirements, and limited the reach of those requirements.
The story has another side: Several cases vindicated environmentalist priorities against competing concerns. In the first years of the movement,
Citizens to Preserve Overton Park, Inc. v. Volpe reinterpreted standards of judicial review to give meaningful protection against threats to the vanishing
“green havens.” A unanimous decision in American
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
Jonathan Z.
Cannon is
Blaine T. Phillips
distinguished
professor of
environmental law
and director of
the Environmental
and Land Use Law
Program at the
University of Virginia
School of Law.
This article was
adapted from
Chapter 10 of
his new book
Environment in
the Balance: The
Green Movement
and the Supreme
Court, published by
Harvard University
Press.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
S E P T E M B E R / O C T O B E R 2 0 1 5 | 43
Trucking Associations v. Whitman upheld the primacy
of human health concerns over economic interests,
despite Justice Breyer’s reservations about a return to
the Stone Age. And a landmark victory for environmentalists, Massachusetts v. EPA, underwrote the urgency and priority of action on climate change.
The ecological model and related values also fared
well in a number of these cases. Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon
ratified the extension of the ecological model in the
Department of the Interior’s ESA regulation against
harmful modifications of species habitats. Friends of the Earth, Inc. v. Laidlaw Environmental Services countered
The Court has
the extravagant rejection of the envipreserved a working ronmentalist worldview in Lujan II.
core of regulatory
The standing decision in Massachusetts
v. EPA endorsed a model of global inauthority against
terdependence in crediting harm to the
concerted attacks
state from climate change. Even Rapaby industry,
nos sanctioned a version of the ecologidevelopers, and
cal model in Justice Kennedy’s “signifiother resource users cant nexus” test for CWA jurisdiction.
These decisions were important affirmations of an environmentalist
worldview. More generally, the Court has preserved a
working core of environmental regulatory authority
against concerted attacks by industry, developers, and
other resource users. And it has limited the reach of
doctrinal innovations on citizen standing, property
rights, and the scope of federal authority in ways that
offer a measure of accommodation to environmentalists. In the final analysis, however, the resistance to
environmentalist beliefs and values overshadows the
gains for environmentalists. At the symbolic level,
just as in outcomes, environmentalists have lost more
before the Court than they have won.
W
hat do the opinions in these
cases tell us, if anything, about
the environmental movement’s progress or its future
success? There are at least two
reasons for believing that the
Court may be distinct enough
from the ambient culture that its resistance to environmentalism has little to say about the movement’s
standing. First, for reasons of its institutional makeup and function, the Court may be more inclined
than other institutions, such as Congress and the
Executive, to resist the inroads of environmentalism.
44 | T H E E N V I R O N M E N T A L F O R U M
Although it also interprets legislation, the Court’s
most visible role is as interpreter of the Constitution,
which lacks an environmental clause and is read to
embody values opposed to those that have animated
the movement. The Court’s traditional adherence
to precedent and an incrementalist case-by-case
approach may make it less receptive to large-scale
change than the political branches.
But the Court has shown its capacity to respond
affirmatively to social movements, as in decisions on
civil rights and gay rights. Even while resisting environmentalist claims in many of its recent cases, the
Court’s decision in Massachusetts v. EPA represented
a comparable breakthrough for the greens, albeit at
the level of statutory rather than constitutional interpretation. This and other successes remind us that
the Court’s response to environmentalism has hardly
been monolithic, as would be more likely if that response were institutionally compelled.
A second reason for skepticism about the broader
relevance of the Court’s decisions in environmental
cases is that the ideological makeup of the Court
over the last several decades may have pushed these
decisions in directions that do not meaningfully reflect the movement’s progress in the larger society.
The conservative movement that began in the 1950s
was gathering strength as the environmental movement matured and found broad expression in federal law. In the modern environmental era, there
have been three chief justices: Burger (1969–86),
Rehnquist (1986–05), and Roberts (2005–present),
all appointed by Republican presidents. When conservatives consolidated their majority in 1991 under
Rehnquist, there was a decided rightward shift in rulings in some areas (e.g., federalism, standing, property rights) but not in others (e.g., affirmative action,
civil rights), and the Rehnquist Court trended left
in its last years. Critics accuse the Roberts Court of
turning again to the right, but the nature and extent
of that rightward pull is contested. In a majority of
Gallup polls on this question over the last twenty-five
years, higher percentages have rated the Court as too
liberal rather than too conservative.
Despite the Court’s increased conservatism (or
perhaps because of it), the Court has operated generally within the cultural mainstream, giving some
confidence that its environmental decisions offer
useful insights on the status of environmentalism in
the society at large. A majority of the American public would not necessarily have approved of any these
decisions. But the structure of many of them — resistance by a block of justices (sometimes a majority)
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
to environmentalist perspectives, balanced by a block
of sympathetic justices (sometimes a majority) — is
instructive beyond the domain of the law.
E
nvironmentalism has shown remarkable
and enduring strength in bringing about
the changes in both laws and values in
the United States, weathering the assaults on these laws by Ronald Reagan in
the 1980s and by congressional Republicans in the mid-1990s, and preserving
the gains of the movement.
But environmentalists themselves lament the movement’s failure to complete the transformation, and
some of them believe that the movement has stalled,
having lost the vision and vigor that brought its early
successes.
Most famously among the latter are Ted Nordhaus
and Michael Shellenberger, who published The Death
of Environmentalism in 2004, followed by a more indepth treatment, Break Through, in 2007. Environmentalism was not dead, they argued, but it needed to
die, because it had “become just another special interest” and had lost the visionary force of its early expression. Although interpreting the cultural implications
of public opinion polls is tricky, recent data suggest a
weakening in environmentalism’s status. In 2010, sociologist Riley Dunlap wrote that “while it still enjoys
majority support, the environmental movement is less
consensual than it was a decade ago.”
The story told by the polls is replicated in the
politics. The movement has been largely successful at
maintaining its early institutional gains, but at considerable cost. Much of its energy goes to fighting off attempts by opposing forces to weaken laws and policies
previously achieved. There has been no significant new
federal environmental legislation for a quarter century. There is no realistic chance in the current political
dispensation for affirmative legislation on the issue of
greatest importance to the movement, anthropogenic
climate change.
Several theories might explain the movement’s predicament: Environmentalism has dissipated its power
in interest group politics, it is a victim of its own success in improving the environment, or it has encountered a resurgence of opposing values. These theories
are not mutually exclusive, and it is likely that each has
had at least some role in determining the current state
of the movement.
The legal transformation of the 1960s and 1970s
was a signal achievement for the U.S. environmen-
tal movement, but institutionalization also brought
changes that some commentators believe have undermined the movement’s visionary power and left
it unable to deal with current threats. As movement
scholar Cary Coglianese has described, the new federal environmental legislation forced green groups to
“strengthen their presence in Washington, D.C.,” centralizing to effectively engage with federal governmental actors. The movement also became professionalized
as environmental groups hired full-time scientists,
economists, lawyers, fundraisers, and media consultants. With the institutionalization of the movement,
major environmental groups began to work within the
system using techniques, such as legislative and administrative lobbying and litigation, typical of special
interests.
According to Nordhaus and Shellenberger, by acting as “just another special interest,” environmentalists
have limited themselves to narrow tactical thinking.
They have put the “technical policy cart before the
vision-and-values horse.” This approach, they argue,
ignores the reality that environmentalism must engage “core American values” to succeed on issues such
as climate change. Although he disagrees with Nordhaus and Shellenberger on much of their critique, Gus
Speth also has placed blame for environmentalism’s
shortcomings on the choice to work within the ‘’system.” In his view, the transformative change needed
to address continuing environmental decline instead
requires deep changes in national values and politics.
Some of the downsides of this “pragmatic and incrementalist” environmentalism are apparent in federal litigation. Most federal environmental cases, including those that
At the symbolic
the Court has taken for review, lie at the
level, just as
interstices of complex statutory frameworks or deal with fine points of conin outcomes,
stitutional law doctrines in areas such environmentalists
as standing, federalism, and property
have lost more
rights. These cases often seem narrow
before the Court
and technical compared with those, for
example, on free speech, affirmative ac- than they have won
tion, or gay rights. Ironically, this results
in part from the success of the movement in institutionalizing its objectives
in detailed, prescriptive statutes. And in the aggregate,
environmental litigation at least in those cases decided
by the Supreme Court has not broadly advanced environmentalists’ values or even their interests.
But within the constraints of existing federal law
and doctrine, environmentalists have pursued cases
that can fairly be called transformative in their reach
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S E P T E M B E R / O C T O B E R 2 0 1 5 | 45
and importance, including TVA v. Hill, which secured
strong protections for species against government resistance, and Massachusetts v. EPA, which made way
for federal regulation of greenhouse gas emissions, also
despite government opposition. Environmentalists
have also helped procure and defend landmark agency
decisions favoring protection, such as the Department
of the Interior’s regulation against the destruction of
species’ habitats in Sweet Home and the cost-blind application of national health-based air quality standards
in American Trucking. These decisions have supported
strong national protections that would not necessarily
have matured in the absence of “special interest” lobbying and litigation.
In addition, the Court’s decisions belie the suggestion that environmental litigation, which falls in
Shellenberger and Nordhaus’s class of “narrow tactical
thinking,” is necessarily disconnected from the values
animating the movement. The regulation in Entergy v.
Riverkeeper, for example, dealt narrowly with cooling
water intake structures at electric power plants, but it
brought the Court to struggle with the basic tension
between biological protection and human welfare.
This and other cases I examine were cultural as well as
tactical encounters.
Addressing the second theory for the movement’s
challenging present, Coglianese observes
that “the existence the environmental
In some cases,
laws and regulatory institutions secured
the Court
by the environmental movement makes
it less likely future crises will materialize
has implied
to mobilize the public outrage necessary
or concluded
for future reform.” These laws and instioutright that
tutions have seen marked improvements
environmentalist in air quality, water quality, waste manclaims, if granted, agement, and species protections. To the
extent that they convinced the public
would lead to
that problems were being dealt with and
regulatory excess
future crises would be avoided, they muted the urgency that led to them — and
that would be necessary to maintain them and respond
to new threats.
T
he noticeable drop in the Court’s identification with environmentalist perspectives as the movement matured
and protective measures took hold is
consistent with this theory. The Court’s
early embrace of environmentalist urgency in cases such as Overton Park
gave way to a more neutral stance and, in some cases,
46 | T H E E N V I R O N M E N T A L F O R U M
to skepticism and even animosity, as in Justice Scalia’s castigation of environmentalist theories in Lujan
II. In other cases, the Court implied or concluded
outright that Congress or the implementing agencies
had overcorrected or that environmentalist claims, if
granted, would lead to regulatory excess. The victimof-its-own-success theory helps explain the apparent
anomaly of Massachusetts v. EPA, which came within
the same three-year span as the Court’s rejection of
environmentalist views in Entergy, Rapanos, and Winter v. Natural Resources Defense Council. Massachusetts
recaptured the urgency of earlier environmental decisions and ranks high in the Court’s environmental
canon in both symbolic and policy importance. One
explanation for the Court’s resurgent identification
with environmentalists in this case was the majority’s
view that climate change is a critical problem that
political institutions had failed to address.
The third possibility is closely related to the second: that once it became institutionalized, environmentalism spawned its own cultural opposition. The
environmental laws of the 1960s, 1970s, and 1980s
were of high symbolic, as well as policy, moment.
Passed by broad majorities from both political parties, they seemed to represent a reordering of societal
values and priorities. By the 1990s, however, it was
clear that if there was or had ever been a national
consensus around environmentalism, it was not as
complete or as enduring as it had seemed.
The cultural opposition organized around themes
of economic freedom, property rights, and resource
use. It found voice in the wise use and property rights
movements.
Associated with the emergence of antienvironmentalist movements has been a larger cultural
sorting. As the bipartisan consensus of the 1970s
crumbled, environmentalism became closely identified with the Democratic Party, which aligned more
consistently with egalitarian-collectivist values and
the new environmental paradigm. The Republican
Party became more consistently the redoubt of individualist-hierarchs and the defender of a countervailing paradigm. Polls show an increasingly less positive
view of the environmental movement among rankand-file Republicans than among their Democratic
counterparts.
My interpretation of the Court’s environmental
decisions offers strong support for the cultural-opposition theory of environmentalism’s current struggles. It shows that the movement, while registering
broad public appeal, challenged beliefs and values
that were deeply embedded in American institutions
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
and proved to be enduring elements of the culture.
Environmentalism did not create these opposing
values, but its success stimulated their expression in
the environmental realm. Although the movement’s
early surge generated favorable public response, including the cascade of federal environmental legislation, the Court and other institutions worked to
level out that response over time in recognition of
competing values that were subordinated in the surge
but that remained strongly ingrained in the culture.
An example of this leveling was New York v. United
States, in which the Court subordinated an environmental concern (siting adequate disposal ca­pacity for
radioactive wastes) to autonomy values (“liberty”).
Although it agreed that the environmental concern
was real and important, the Court insisted that it
be addressed consistent with the liberty-enhancing
constitutional principles of federalism. The case both
marked the beginning of the Rehnquist Court’s federalism revolution and illustrated the persistence of
values opposing environmentalism’s urgency.
Other defeats followed this pattern. One may take
Justice Breyer’s comment at face value and assume a
consensus among the jurists that, considered by itself, harming the environment is not a good thing.
But in each loss for the environmentalists, some other value — sometimes only implicit in the Court’s
interpretive rationale — emerged to trump the protective impulse.
T
he litany of cases represents neither the
defeat nor the triumph of environmentalism but depicts instead an ongoing
struggle among the justices. Only a
small minority of the cases I examine,
whether decided for or against the environmentalist cause, were without a
dissent or a significant concurrence. The full depth
and persistence of the cultural opposition in these
cases are masked by the variability among the decisions. Sometimes the environmentalist perspective
prevails, sometimes it fails; a majority of the Court
seems open to either perspective depending on the
circumstances.
Although just one of five conservative judges currently on the Court, Justice Scalia has distinguished
himself as its archetypal antienvironmentalist. Although he wrote the opinions for the Court in American Trucking and City of Chicago v. Environmental
Defense Fund upholding environmentalist positions,
the environmental harms in those cases were within
the frame of traditional nuisance concerns. In cases
from Lujan II to Massachusetts v. EPA and Entergy.
Scalia has ardently resisted modern environmentalism’s ecological perspective. There are several justices
that one might place opposite Scalia. Justice Douglas internalized environmentalism as
thoroughly as Scalia has its antithesis,
but he served only a short time in the The Court worked
to level out the
modern environmental era and never
when Scalia was on the Court. Justice
environmentalist
Blackmun revealed his environmental
response in
sympathies in his Sierra Club v. Morrecognition of
ton dissent, earning a pat on the back
competing values
from Douglas that might be taken as
a passing of the mantle, but left the
that remained
Court before many of the cases I exam- strongly ingrained
ine were decided. Justice Stevens, who
in the culture
was appointed to fill Justice Douglas’s
seat on the Court, at first offered environmentalists a lukewarm embrace. He went on,
however, to be a foil for Justice Scalia in many of the
most prominent cases — Lujan II, Rapanos, Lucas,
Sweet Home, Entergy, Massachusetts v. EPA. In these
he championed the environmentalist worldview that
Scalia decried.
Among justices still on the Court, Justice Ginsburg is Justice Scalia’s strongest counterpart. She
joined Justice Stevens’s proenvironmentalist opinions
in cases that were decided after she joined the Court,
and she contributed her own voice for the environmentalist perspective in decisions such as Laidlaw.
Justice Kennedy, who owns title to swing justice,
has shown sympathy for ecological perspectives. He
joined the majorities in Sweet Home and Massachusetts v. EPA, an environmentalist triumph that would
not have happened if he had held ranks with other
conservatives on the Court. Even in cases where he
has supported an antienvironmental outcome, he
has written concurrences receptive to the ecological
model’s implications for standing, property rights,
and regulatory scope.
Justice Kennedy exemplifies a conservative who
is sympathetic with core environmentalist concepts,
Justice Breyer a liberal who resists environmentalist exceptionalism. Their opinions do not define an
environmental future in which the current conflicts
can be transcended. But they do highlight areas for
further exploration in overcoming the current impasse. Kennedy points to the potential of the ecological model to be applied in ways that limit conflict
with elements of the conservative paradigm such as
limited government, property rights, and economic
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S E P T E M B E R / O C T O B E R 2 0 1 5 | 47
development. Breyer’s concurrences in cases such as
American Trucking and Entergy suggest the capacity
of liberal welfarism to temper environmental regulatory enthusiasm in a way that moderates conflict
with that paradigm.
The environmental movement has become “more
fragmented,” Cary Coglianese noted, even as it has
become institutionalized. The movement has always
had plural strains, but this diversity has grown and
become concrete among groups that appeal to different interests, values, and practices. At the national
level, major groups vary in their understanding of the
proper relationship to nature, their preferred tools,
and their willingness to engage with resource users
and corporations. The lodestar of Defenders of Wildlife, for example, is “the inherent value of wildlife and
the natural world” apart from their utilitarian and
aesthetic value. The Nature Conservancy, while also
devoted to conservation, embraces both ecocentric
and anthropocentric strains. TNC emphasizes land
acquisition and voluntary programs rather than confrontation, regulation, and litigation strategies, a
pose more likely to appeal to political conservatives.
Greenpeace uses “peaceful protest and creative communication” to draw public attention to practices
it opposes, and the Center for Biological Diversity
channels its activism in regulatory litigation and “creative media.” The Natural Resources Defense Council relies on political organizing, lobbying, and litigating to address a range of
environmental issues, but it also touts
The litany of
its partnerships with businesses “who
cases represents
create prosperity and protect the envineither the defeat ronment at the same time.” The Envinor the triumph of ronmental Defense Fund has staked its
environmentalism claim as the leader in the use of market
mechanisms and collaborations with
but depicts instead resource users and in the embrace of
an ongoing struggle economic sustainability as a condition
among the justices of environmental sustainability.
This diversity creates a rich cultural
marketplace for U.S. environmentalism. Although fragmentation could dissipate the
movement’s energy and render it ineffective, at this
moment, when the movement is searching for new
footing, diversity may be salutary. Having a suite of
expressions of environmentalism, effective across a
range of audiences and settings, might be more effective in a polarized society than a more univocal
movement. Diversity can make room for innovation.
Competition can help sort out which approaches
maximize the cultural viability of protective actions.
48 | T H E E N V I R O N M E N T A L F O R U M
In response to environmentalism’s struggles, some
have urged radical change. These critics view the existing system as either inherently indifferent to environmental harm or beyond the reach of environmentalism’s appeal. They argue for the system’s destruction or transformation and prescribe their preferred
future for society, the environmental movement, or
both.
Once described as the “ultimate insider” for his
prior service as environmental advisor to two presidents and as a senior U.N. official, environmentalist Gus Speth now offers a radical assessment of the
present system. He argues that the political economy
is failing pervasively and that this failure calls for a
sweeping movement of the left that would change
virtually every aspect of our public life — from the
electoral process to wealth distribution, consumption, money and finance, and corporate governance.
Nordhaus and Shellenberger offer a different critique,
focused on the shortcomings of environmentalism itself and calling on the movement to jettison its “politics of limits” for a “generous, adaptive, contingent
and anthropophilic politics.” In Speth’s view, if environmentalism is to succeed, it must overwhelm the
opposition, but he cannot offer any immediate prospect of the deep systemic changes that he argues are
necessary. Similarly, Nordhaus and Shellenberger’s
bracing tonic is not backed by a theory of political
or cultural change that would support the promise of
better environmental outcomes.
A
gainst these sweeping, prescriptive
critiques, I offer a more modest,
largely descriptive account: one that
emphasizes overcoming, or dispelling, cultural resistance to the movement’s progress through a process of
cultural experimentation and testing
while staying connected to the movement’s historical
roots. My account looks for indications of a further
evolution in cultural values and practices regarding
the environment. These innovations might be the
first steps toward broad transformations of the sort
that Speth or Nordhaus and Shellenberger envision,
or they might not. But they have promise in their
own right and might help establish, if nothing else,
more robust support within our “existing system” for
addressing environmental concerns, including the
daunting challenge of climate change. Such a shift
could reshape the movement’s interactions with the
Court, among other major institutions.
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Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
Before there was environmental law and policy
as we now know it, Aldo Leopold was working out
the implications of ecological interdependence for
personal ethics. The “land ethic” that grew from his
understanding of the world as a “biotic community”
was framed to inform the choices of individual landowners, who were encouraged by their own choice
to be­come “citizens” of the land community. In this
pure form, Leopold’s land ethic is not just consistent
with autonomy values; it emphasized the choices
that they protect. Concerns about externalities and
free rider problems led to the prevailing view among
environmentalists that effective implementation of
the land ethic requires collectivist measures, but its
original conceptualization as an ethical evolution
(not a governmental program) holds out another
possible path of realization emphasizing individual
choice and private orderings.
In his path-breaking piece “Private Environmental Governance,” Michael Vandenbergh depicts a
host of private orderings around sustainable practice,
some in concert with environmental groups, others
not. Voluntary certification and labeling systems for
forest products, fish, bananas, and coffee govern the
terms under which these resources are grown and
harvested. Approximately 40 percent of private U.S.
forestland is managed under one of two voluntary
stewardship certification associations.
Private standards established by the U.S. Green
Building Council anchor the green building movement. The council’s Leadership in Energy and Environmental Design program is a voluntary certification system for sustainable commercial and
residential construction and neighborhood development projects. “As of 2012,” Vandenbergh writes,
“LEED-certified buildings accounted for two billion square feet of occupied space in the U.S.” Supply chain contracts required by large retailers such
as Wal-Mart and Hewlett-Packard impose environmental requirements on their suppliers in the United
States and abroad. Vandenbergh estimates that the
potential benefits of these bilateral requirements of
performance beyond “public legal requirements may
be larger than many current international or national
regulatory measures.”
These diverse private orderings for environmental benefit are consistent with values favoring market
transactions and voluntary group associations and
they invite a more culturally inclusive construction
of the stewardship ethic. They do not necessarily
represent a deep commitment to that ethic by their
participants. They may be motivated by the personal
values of resource owners or corporate officials, but
they may also be responding to prods from environmental groups, veiled threats of governmental regulation, or investor or consumer demands.
The model of private environmental governance
assumes minimal government involvement beyond the operation of contract
and property law that provides the unA major shift to
derstory of our laissez-faire economic
private governance
system. A major shift to this model
would move
away from regulation would move enlitigation from
vironmental litigation from public to
private law issues and doubtless pro- public to private law
duce many fewer environmental cases
issues and doubtless
in the Supreme Court. Such a shift is
produce
many fewer
unlikely, however. Although private
orderings offer useful alternatives to Supreme Court cases
government programs and may enlarge environmentalism’s cultural appeal, their potential is limited by collective-action
problems, such as free riding, which are likely only
to increase with the costs of effective response.
Even if more robust government involvement is
necessary, however, the use of flexibility devices, such
as pollution taxes and emissions trading, can expand
the appeal of environmental protection by offering
more room for choice and greater efficiency than do
other forms of regulation. In the early decades of the
modern movement, environmentalists resisted these
devices in favor of more prescriptive regulation because they believed the devices offered less certain
protections and condoned environmental harm. In
Chevron, NRDC opposed a plantwide bubble under the Clean Air Act that the Court’s 1984 decision upheld as a reasonable accommodation between
economic growth and environmental protection.
Since then, however, environmentalists have increasingly embraced flexibility mechanisms. The acid rain
trading provisions of the CAA Amendments of 1990
were influenced by an emissions-trading proposal
developed by the Environmental Defense Fund and
supported by President George H. W. Bush as a market-friendly approach to environmental protection.
Broad support among environmental groups for the
EPA’s regional bubble and trading approach in EME
Homer v. EPA is further evidence of this shift.
Some environmentalists have also signaled their
willingness to relax their historic resistance to economic efficiency as a policy benchmark. In Entergy,
environmentalists fought against the use of costbenefit analysis and the efficiency paradigm in setting
policy for aquatic organisms; the National Wildlife
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S E P T E M B E R / O C T O B E R 2 0 1 5 | 49
Federation and Sierra Club argued in their amicus
brief that “the value of the ecological integrity of the
nation’s waters cannot be quantified.” In other settings,
however, environmentalists have begun to use monetization of environmental benefits to tactical advantage. The social cost of carbon estimates the marginal
benefits of climate change protections, expressed as the
value of impacts avoided by the reduction of a ton of
CO2 or its equivalent. This number is used in costbenefit analyses of EPA’s greenhouse gas emission rules
and could also be used in setting the cap for an emission trading program or the amount of a carbon tax.
Environmental groups, including NRDC and EDF,
successfully urged the administration to increase its social cost of carbon estimates to reflect current climate
science and then helped defend the higher numbers,
potentially broadening the base of support for a robust
climate change policy.
The embrace of industrial-scale technologies and
economic development to deal with pressing problems
such as climate change also enlarges environmentalism’s cultural range. The founding text of the movement, Rachel Carson’s Silent Spring, begins with “A
Fable for Tomorrow,” depicting a rich and harmonious world threatened by deathly synthetic chemicals. Critics have attacked this narrative as a harmful romanticization and a rejection of human agency characteristic of environmentalists. Nordhaus
and Shellenberger, for example, argue
that it falsely depicts nature as Edenic
The continuance of and the natural impulse of humans to
the movement may control it as sinful, aping the myth of
depend on keeping the fall in the book of Genesis. But
its roots deep in the Carson did not urge retreat to a prechemical past but instead encouraged
cultural soil from
the development of a “science of biotic
which it grew, even controls” that could offer comparable
protections for agriculture with fewer
as its expressions
ecological risks than chemical poisons.
take on new,
In The End of Nature, environmental
adaptive forms
activist Bill McKibben ruefully argued
that anthropogenic climate change
pervaded nature in a way that made human dominance complete and management inevitable. If nature is thoroughly domesticated, the question for
environmentalists may shift from how we put it
back or set it free to how we manage it to best effect. This shift in perspective revealed itself dramatically in the split among environmentalists over the
Cape Wind project off Nantucket. Environmentalist Robert F. Kennedy Jr. proclaimed his support
for wind power but drew the line at a project that
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would compromise the beauty of his beloved Cape
Cod. Kennedy compared siting the project on Nantucket Sound to building a wind farm in Yosemite
National Park. But environmentalist Bill McKibben opposed Kennedy, on the grounds that largescale deployment of “cutting edge technologies”
will be necessary to avoid the much more serious
threat of climate change.
Environmentalists almost universally embrace renewable energy development, although troublesome
issues about siting remain, as in Cape Wind. Many
remain skeptical, however, of another technology to reduce green­house gas emissions: nuclear power, which
from the early days of the movement has embodied
dangerous technological hubris, as in Vermont Yankee
Nuclear Power Corp. v. NRDC. But climate change scientist and activist James Hansen and other prominent
environmentalists have argued that the movement will
have to accept it, albeit in a more advanced, safer form.
That’s because, by Hansen’s calculation, renewable
sources cannot scale up fast enough to prevent “dangerous climate change.” Including nuclear power in the
solutions to climate change may also reduce resistance
to climate change science among skeptics, as Dan Kahan and colleagues have shown.
E
nvironmentalists’ receptivity to industrial-scale renewable energy technologies goes with recognition of the
economic transformation needed to
develop and deploy those technologies
at the scale necessary to address climate
change. This has helped them connect
with groups outside the movement, partnering with
industries and labor unions to champion economic
investment and job growth in the “clean economy.”
The BlueGreen Alliance joins major environmental
groups (e.g., NRDC, EDF, National Wildlife Federation) with major labor unions (e.g., United Steel
Workers, United Auto Workers, Amalgamated Transit Workers) to increase the number and quality of
jobs in the new energy economy.
Mark Lynas argues in his book The God Species
that Earth is stressed across a number of its major
system processes, and humans have transgressed the
boundaries of three of them: biodiversity loss and
excessive nitrogen (eutrophication) in addition to
climate change. To reestablish sustainable practices
in these areas and avoid exceeding other planetary
boundaries, Lynas writes, we must reject “the standard Green creed . . . that playing God is dangerous.
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
Hence the reflexive opposition to new technologies.
. . . My thesis is the reverse: playing God (in the sense
of being intelligent designers) at a planetary level is
essential if creation is not to be irreparably damaged
or even destroyed by humans unwittingly deploying
our newfound powers in disastrous ways.”
The promise of these change initiatives is not only
a more pragmatic approach to looming environmental challenges but also a cultural inclusivity that could
lead to broader acceptance of the scientific basis for
urgent action as well as agreement on forms that action should take. The risk is that they will dissolve the
environmentalist perspective into an undifferentiated
sea of competing interests and value preferences. In a
world of trade-offs, one may question what remains of
environmentalism’s transformative aspirations.
M
y own view is that although the
movement needs to come to
terms with the Anthropocene
(and is already doing that), it
would be a mistake to abandon
its traditional wellsprings. Seminal figures such as Leopold and
Carson offer bridges between the old and the new.
Leopold was an advocate of wilderness protection,
but he also valued working landscapes, including the
Wisconsin farm that he brought back into productive use. Carson defended an idyllic harmony from
the harms of pesticides but envisioned a chemically
managed future for high­-yield agriculture.
One might argue that continuing the emphasis on
our connectedness to nature is not based on reason,
but flatters instead the movement’s mystical side,
risking romantic excess or policy irrelevance. Even
reason has its limits, however. It cannot by itself force
change beyond prevailing conventions of reasonableness. Movements may appeal to reason; they may use
the implements of reason, such as cost-benefit analysis, to advance their aims. But they are not powered
by reason, and reason may arbitrarily limit their horizons. This was the point of David Brower, who knew
something about what made a movement, when he
claimed provocatively that “objectivity is the greatest
threat . . . today.” The continued tenacity and power
of the movement may depend on keeping its roots
deep in the cultural soil from which it grew, even as
its expressions take on new, adaptive forms.
Contending worldviews inflect the justices’ assessment of environmental risks and societal responses.
The divisions within the Court reflect the competi-
tion between these worldviews in the larger culture.
The cases are consistent with other evidence that the
modern environmental era, despite its rush of bold
legislation, did not bring about deep cultural change.
Opposing beliefs and values proved to be enduring
and deeply embedded in our institutions and practices. Indeed, during the
In the absence of
span of the modern environmental
legislative change,
movement, and sometimes with the
Court’s help, those beliefs and values
the Court’s task
seem more entrenched than in the
is even more
1970s.
challenging, as
The movement struggles with its
accommodating
maturity. Commentators from within
and outside it are skeptical of its ability
a changing world
to deal with a new generation of envistretches the limits
ronmental problems of daunting scale
of existing law
and complexity. If, as the Court’s cases
suggest, the movement’s difficulties
stem from cultural stalemate, its future may depend
on neutralizing the cultural opposition. But these
strategies, even as they promise greater compatibility
with dominant cultural strains, are of uncertain outcome and may threaten the sources of environmentalism’s distinctive power.
Whatever the movement’s future directions, the
Court will continue in its role as legal and cultural arbiter. It has already engaged with the central
question facing the movement (What is our proper
relationship to the natural world?) in cases such as
Sierra Club v. Morton, TVA v. Hill, Lyng, and Laidlaw. It will likely have occasion to do so again as
the movement and the institutions through which
it engages evolve. The Court is likely to use environmental cases for further development of constitutional doctrine on property rights, standing,
the commerce power, and federalism. It will also
be inclined to make additional investments in its
portfolio of cases on instrument choice. Finally, the
Court’s significant investments in culturally salient
statutory issues — such as the EPA’s authority to
regulate greenhouse gas emissions under the CAA
— will call for future installments.
In the absence of legislative change, the Court’s
task in environmental cases may be even more challenging than in the past, as efforts to accommodate
a changing physical and cultural environment further stretch the limits of existing environmental
laws. That difficulty, however, may only increase
the importance of the Court’s role as reason-giver,
conveying law’s meanings as well as determining its
outcomes. TEF
Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Sept./Oct. 2015
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